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Appeal from Original Order No. 17 of 1948 decided on 3rd March, 19j3 against the Order of Hedayetullah, Sub ordinate Judge, 3rd Court, Zilla Chittagong, dated the 12th May, 1948.

Civil Procedure Code (h of 1908), O. XLIII, r. 7 (s) Appeal incompetent unless Receiver appointed by name.

The order appointing a Receiver without mentioning anybody by name under Order XL, rule 1 of the Code of Civil Procedure is not a complete and final order and is, therefore, not appealable under Order XLIII, rule 1 (s).

Such an appeal is premature and must be dismissed.

In the present case, after the appeal had been filed, the Subordinate judge appointed a Receiver by name and the appellant by a petition to the High Court prayed that the appeal should be considered to have been directed not only against the original order of the Subordinate Judge but also against the subsequent order appointing a Receiver by name.

Held, that the appeal against the first order of the Subordinate Judge must be dismissed.

The petition in respect of the subsequent order was however allowed to be treated as an appeal.

Phani Bhusan Pal v. Sm. Nalinibala Dasi 67 C L J 107 ; Raja Shyam Lal Singh v. Rai Kumar Thakur Madhusudan Singh 31 C U' N 235 and Srinivas Prosad Singh v. Kesho Prosad Singh 14 C L J 489 approved.

P. L. S. Paianiarpa Chetty alias Shunmugan Chetty v. P.L.P.P.L. Palaniappa Chetry and others I 1, R 40 Mad. 18 (F B) A I R 1918 Mad. 1146 , Gobind Ram v. Ganesh Ram I L R 1922 Pat. 625 Nrisi gh Charar Nandy Chowdhury v. Rajnih Prasad Singh and others A I R 1932 Pat. 360, The Firm Raghbir Singh claslvant of Quetta v. Narijan Singh and others A I R 1932 Lah. 48, Kirat Singh and others v. Bhat Kalu Singh, andothers A I R 1934 Lah. 129 and Raje Gopalrao u. Rape Devidas and others A I R 1938 Nag. 540 ref.

Prakash Chandra Pakrasi, for Appellant.

Nirmal Chand a Nandi, for Respondent No. 1 (1).

B. N. Roy Chowdhury and Rohini Binode Rakshit, for Respondents Nos. 2‑4.

A. S. M. Mofakher, for Respondent No. 5.

‑This appeal by the defendant No. 1 is directed against an order of the Subordinate Judge, Chittagong, dated the 12th May, 1948 appointing a Receiver without mentioning any one by name. The appeal was filed on the 28th May, 1948. On the 16th August, 1948, a petition was filed on behalf of this defendant appellant against a subsequent order made .by the Subordinate judge on the 31st May, 1948, according to which one Babu Phanindra Mohan Bose was appointed Receiver by the learned Sub ordinate Judge In paragraph 6 of the said petition which is printed as Appendix No. I at the end of the paper‑book it is stated as follows :‑

"That your petitioner is now advised that the order of the learned Subordinate judge, dated ‑ the 31st May, 1948 appointing a Receiver requires to be incorporated in the First Miscellaneous Appeal No. 17 of 1948 and that this petitioner files the certified copy of the order, dated the 31st May, 1948 appointing a Receiver" ;

and the prayer in the said petition is as follows:

Wherefore your petitioner prays that your Lordships may be graciously pleased to pass an order that the First Miscellaneous Appeal No. 17 of 1948 is directed not only against the order of Mr. Hedayetullah, Subordinate judge, 3rd Court, Chittagong dated the 12th May, 1948 but also against the order dated the 31st May, 1948, passed in Partition Suit No. 48 of 1947 or pass such other or further orders as to your Lordships may seem fit and proper".

It was ordered at the time this latter application was filed that the same be kept on the record and be considered at the time of the hearing of the present appeal, being F.M.A. No. 17 of 1948.

Mr. N. C. Nandi, who appears for the respondent, has taken a preliminary objection as to the incompetency of this appeal. He argues that inasmuch as the order, dated the 12th May, 1948, against which the present appeal has been preferred, does not mention any one as Receiver but only state that a Receiver shall be appointed, the said order is not a complete and effective order under Order XL, rule 1, clause (s) of the Code of Civil Procedure against which an appeal can be preferred under Order XLIII, rule 1 (s) of the Code of Civil Procedure. In support of his argument Mr. Nandi has relied on the cases of Phani Bhusan Pal v. Sm. Nalinibala Dasi (67 C L J 107) (judgment of M. N. Mukherji and S. K. Ghose JJ.), Raja Shyam Lal Singh v. Rai Kumar Thakur Madhusudan Singh (31 C W N 235) (judgment of Greaves and Mukherji, JJ ), and Srinivas Prosad Singh v. Kesho Prosad Singh (14 C L J 489) (judgment of Mookerjee and Carnduff, JJ.). Mr. Pakrashi who appears for the appellant, argues that as soon as a Court decides to appoint a Receiver on the ground that it is "just and convenient", as mentioned in Order XL, rule 1 o the Code of Civil Procedure, the party aggrieved by such an order is entitled to prefer an appeal forthwith without waiting for the personnel thereof to be mentioned by the Court, for Order XL, rule 1 does not say that a particular person by name shall be appointed. In support of his contention Mr. Pakrashi has relied on the cases of P.L.S. Palaniappa Chetty alias Shunmugan Chetty v. P.L.P.P.L. Palaniappa Chetty and others ( I L R 40 Mad. 18 F B = A I R 1918 Mad. 1146), Gobind Ram v. Ganesh Ram (I L R 1922 Pat. 625), Nrisingh Charan Nandy Chowdhurv v. Rajniti Prasad Singh and others (A I R 1932 Pat. 360), The Firm Raghbir Singh Jaswant of Quetta v. Narijan Singh and others (A I R 1932 Lah. 48) and Ktrat Singh and others v. Bhai Kalu Singh and others (A I R 1934 Lah. 129). It is strongly urged by Mr. Pakrashi that the view taken by their Lordships of the Calcutta High Court in the cases mentioned above and relied upon by Mr. Nandi, should not be accepted as correct but that we should accept the view taken by their Lordships of the Madras, Patna .and Lahore High Courts.

We are toll that on this point there is no decision of this Court and so it may not be without advantage to refer briefly to the observations of their Lordships in some of the cases cited before us. We may mention that although the case of P.L.S. Palaniappa Chetty alias Shunmugan Chetty v.. P.L.P.P.L. Palaniappa Chetty and others (supra) is a decision of the Full Bench. Spencer, J., dissented from the view taken by two of the other learned Judges ; and we respectfully agree with the following observations made by Spencer, J. :‑

"I doubt whether it can have been the intention of legislature to allow two appeals, one from the first decision as to the need of a Receiver and another from the final order appointing a definite person by name to the office. It seems to me that such a procedure would involve a multiplicity of proceeding a result which it is always desirable to avoid where possible. No one who wishes to appeal can complain of having to wait till a Receiver is actually selected, as the interval between the decision to appoint and the selection of an individual is unlikely to be long and in practice the Courts should generally be able to make them both simultaneous. If there is an interval, nobody's interests are prejudiced by waiting, as possession of property cannot be transferred until it is known who is to take it over".

An order that a Receiver should be appointed is in fact not an order that can be put into operation until some one is actually appointed.

I should therefore hesitate before attributing to the legislature an intention to provide rights of appeal against incomplete and ineffective orders, even if the literal wording of the Code were riot also against such a construction. We may also mention that his Lordship Spencer, J., very rightly in this connection referred to Appendix F, Form 9 of the Code of Civil Procedure and observed thus : "This warrant cannot be issued until an individual has been selected as it is to be addressed by name". Appendix F, Form 9 under Order XL, rule 1 of the Code of Civil Procedure is to the following effect:

"No. 9.

Appointment of Receiver (O. XL, R. 1)

(Title)

To

Whereas . . . . has been attached in execution of a decree passed in the above suit on the . . . day of. . . . 19 . in favour of . . . . You are hereby (subject to your, security to the satisfaction of the Court) appointed Receiver of the said property under Order XL, of the Code of Civil Procedure, 1908, with full powers under the provisions of that order.

You are required to render a due and proper account of your receipts and disbursements in respect of the said pro perty on . . . You will be entitled to remuneration at the rate of . . . per cent., upon your receipts under the authority of this appointment. '

Given under my hand and the seal of the Court, this. . . day of. ...19.

Judge".

We have carefully examined most of the decisions of the different High Courts on this point and we must say with great respect that the view of the Calcutta High Court in so far as it says that the order appointing a Receiver without mentioning anybody by name under Order XL, rule 1 of the A Code of Civil Procedure is not a complete and final order and is, therefore, not appealable under Order XLIII, rule 1(s), seems to us to be sound and, prevails with us. It seems that the view that was expressed by Sir Ashutosh Mookerjee in the case of Srinivas Prosad Singh v. Kesho Prosad Singh was followed in the case of Raia Shyam Lal Singh v. Raj Kumar Thakur Madhusudan Singh and it appears, also that in the case of Phani Bhusan Pal v. Sm. Nalinibala Dasi, the above case of Raja Shyam Lal Singh was also followed. We may also mention one case that was referred to by Mr. Pakrashi in support of his argument though in a different way, but it really helps the contention of Mr. Nandi, namely, the case of Raie Gopalrao v. Raje Devidas and others (A I R 1938 Nag. 540) (Stone C. J. and Niyogi, J.). We must observe, however, with due respect to their Lordships Stone, C. J. and Niyogi, J. that although we agree with the view of their Lordships that an order which ultimately appoints a particular person as Receiver being a final order is appealable. We are unable to subscribe to the view that no application for appointment of a Receiver should be taken as complete unless the personnel of the office of Receiver is mentioned by the applicant, because, first of all that is not required by the provisions of Order XL rule 1, clause (a) of the Code of Civil Procedure ; secondly, that a Receiver being an officer of the Court, it is open to the Court to appoint any one as its officer ; and thirdly it is common knowledge if the applicant be the plaintiff or the defendant mentions any name for the appoint ment of a Receiver, the very fact that a party nominates a particular , person as a Receiver may make his name unacceptable to the other party. So, we must make it clear that we do not hold the view that although an order may not be complete and effective unless a Receiver is appointed by name by a Court, it does not follow that the appointment of a Receiver and his appointment by name must be done simultaneously or on the same date on the basis of one and the same application which prays for both.

It seems that the view taken by the Calcutta High Court has also been the view of Bombay, Allahabad and Nagpur High Courts and we have very carefully considered the opinion of their Lordships of the other High Courts ; but with due respect we must say that for the reasons stated above we find it difficult to agree with the view taken by their Lordships of the Madras, Patna and Lahore High Courts. So, we must uphold the preliminary objection and, in our opinion, this appeal is premature and, therefore, it must be dismissed with costs to the three sets of appearing respondents. But, in the ends of justice we must allow the other application which being filed on the 16th August, 1948 (Appendix I of the Paper‑Book) was admittedly filed within time as the order appointing Receiver by name was made on the 31st May, 1948, and give an opportunity to the appellant to transform this appeal into an appeal against the subsequent order, dated the 31st May, 1948.

The result, therefore, is that the present appeal against the order, dated the 12th May, 1948 is dismissed with costs, being only the hearing fee of 6 Gold Mohurs to be divided equally among the three sets of respondents ; but we allow the application filed on the 16th August, 1948 and give liberty to the appellant to amend the Memorandum of the present appeal and transform it into an appeal as from the order, dated the 31st May, 1948, but, such amendment must be made within two weeks from to‑day, condition precedent to the amendment being that the costs awarded by us to the respondents in the present appeal as mentioned above must first be paid.

After the payment of costs and amendment as above, the appeal so transformed will be heard in due course.

BADIUZZAMAN, J.‑--I agree.

A. H. Appeal dismissed,

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